Possession of a Firearm

Weapons offences are taken seriously and aggressively prosecuted. If you are being charged with unlawful possession of a firearm, then you should consider retaining a lawyer as soon as possible to defend your rights.

What is possession of a firearm or weapons?

It is a criminal offence to unlawfully possess a firearm, to possess a weapon knowing that its possession is unauthorized, or to possess a weapon (such as firearms) for a dangerous purpose.

1. Unlawful possession of a firearm:

• Under section 91(1) of the Criminal Code, it is an offence to possess a prohibited firearm, a restricted firearm, or a non-restricted firearm without being the holder of:
  • A license under which the person may possess it; and
  • In the case of a prohibited or a restricted firearm, a registration certificate for it.

2. Possession of a weapon knowing that its possession is unauthorized:

• Under section 92(1) of the Criminal Code, it is an offence to possess a prohibited firearm, a restricted firearm or a non-restricted firearm knowing that the person is not the holder of
  • A licence under which the person may possess it; and
  • In the case of a prohibited firearm or a restricted firearm, a registration certificate for it.

3. Possession of weapon for a dangerous purpose:

• Under section 88(1) of the Criminal Code, it is an offence to carry or possess a weapon, an imitation of a weapon, a prohibited device, or any ammunition for a purpose that is dangerous to the public peace or for the purpose of committing an offence.

What is a weapon?

Section 2 of the Criminal Code of Canada defines weapons as anything that can be used, designed to be used, or intended to be used:

• To cause death or injury of another person, or
• For the purpose of threatening or intimidating another person

This definition of a weapon is broad. It includes anything from a pocketknife to firearms.

What is a firearm?

Section 2 of the Criminal Code of Canada also defines firearms. A firearm is any barrelled weapon from which any shot or bullet can be discharged and that is capable of causing either serious bodily injury or death to a person. It includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm. Essentially, any gun or weapon that can fire bullets or projectiles can constitute a firearm.

The Criminal Code also has specifications regarding what constitutes a prohibited firearm and a restricted (as well as a non-restricted) firearm. A lawyer can evaluate the evidence and the alleged firearm to ultimately defend your case.

Arrest and bail:

When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.

You may be released directly by police, or you could be held for a bail hearing, depending on the specific offence and your own personal circumstances (e.g. if you have a criminal record). The police have a few mechanisms for release, which all require you to attend court as specified. If you are released by police, there are likely to be conditions attached to it through what is known as an undertaking. These conditions can be, for example, prohibitions against attending a certain location.

Although some of the possession offences are hybrid offences (i.e. the Crown has the ability to choose whether to proceed summarily or by indictment), all hybrid offences are considered indictable until the Crown elects. As such, you will be asked to attend a police detachment for fingerprinting ahead of your first court appearance.

If you are held for bail, you will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.

If you are brought to court for bail, a lawyer can speak to the Crown about what is required to secure your release and can propose a bail plan. The plan often involves one or more people called “sureties.” A surety is someone you know who agrees to take responsibility for your release into the community. They pledge to pay a certain amount of money if you do not follow your conditions of release. Being a surety is a huge responsibility, and a lawyer can explain their role and adequately prepare them for court.

Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”

The Crown may consent to your release based on the plan. If they have concerns about the plan, the circumstances of the offence, your chance of reoffending, your ability to follow conditions (especially if you have breached bail before), et cetera, they may contest your bail. A contested bail results in a bail hearing (also known as a “show cause” hearing). In line with the principles of reasonable bail, the Crown must “show cause” as to why it is in society’s best interest for you to be detained—although there are certain circumstances that require the accused to demonstrate why their detention is not justified.

There are three grounds of detention upon which you can be denied bail. The Crown will state on which grounds they are seeking detention, which consider:

• • Whether you are a flight risk (primary ground);
  • Whether you pose a threat to the public (secondary ground); and
  • Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).

The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.

As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. These bail conditions can be stringent and restrictive and may include, but are not limited to:

• • Supervision through sureties;
  • Curfews or house arrest, including ankle monitoring;
  • No contact with certain individuals; and/or
  • Restrictions on where you can travel.

When making this consideration, the Crown and the court are bound by the “ladder principle.” This principle means that when it comes to imposing conditions, the least restrictive conditions must be imposed unless the Crown can show that the less restrictive conditions are not appropriate in your case. The Supreme Court of Canada’s 2017 decision in R. v. Antic reinforced this principle. A number of courts, however, seem to have forgotten this obligation. A lawyer can help the court recognize that your detention is not necessary and can remind the court why less strict bail conditions are appropriate.

If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court. Obtaining bail can be an uphill battle. Hiring a lawyer maximizes your chances of being released

It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.

Awaiting trial:

Once you are released by police or a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.

A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.

In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.

A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.

If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.

There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.

If you are charged with possessing a firearm knowing it is unauthorized, or if you are charged with the other possession offences and the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when  you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, by a judge alone in the Superior Court, or by a judge and jury in the Superior Court. Making your election is a strategic decision. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.

Consequences if found guilty:

Due to the dangerous nature of firearms, firearm and weapons offences are prosecuted vigorously and, in some cases, even carry mandatory incarceration sentences. Depending on the specific offence, you could also face a maximum sentence of ten years. A lawyer can help you understand the consequences of these offences and work to secure the best possible outcome in the circumstances.

It’s vital to hire a lawyer

Being charged with a criminal offence, such as possession of a firearm, is a stressful and tolling experience. It is important to seek professional advice from a lawyer about your rights from the beginning.

A lawyer can also do much more. They can:

• Work to secure your release with the most favourable conditions;
• Help you navigate the criminal justice system;
• Ensure that the Crown meets its disclosure obligations;
• Identify systematic or administrative errors in the criminal process, including Charter rights violations;
• Speak to the Crown on your behalf, negotiate, and advise you of your options;
• Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
• Gather further evidence to support your version of the events;
• Obtain a more lenient sentence in the event a guilty plea or conviction is entered.

All criminal cases are complex and fact specific. We have provided general information about how firearm possession cases are handled. Hiring a lawyer provides your best chance at mounting a successful defence. Retaining one holds particular importance in firearm possession cases, as they involve searches and seizures, which could infringe on your rights. For more information about how we can help, please contact our team.